Welcome. I am an author and freelance columnist based in London, Ontario. Posted below is a selection of my recent columns as well as a link to my book, Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill-Queen's University Press: 2006).

Wednesday, September 06, 2006

Gross betrayal of the rule of law

The London Free PressBy Rory Leishman

More than six months after Mr. Justice David Marshall of the Ontario Superior Court of Justice ordered aboriginal protestors to end their occupation of a proposed housing project on disputed land in the town of Caledonia, the land still remains under occupation.

Meanwhile, the Ontario Provincial Police have laid 14 charges arising out of this dispute including attempted murder, assaulting a police officer and forceable confinement; and the law-abiding citizens of Caledonia live in continual fear of violence between aboriginal and non-aboriginal demonstrators.

Still, Ontario Attorney General Michael Bryant has no intention of upholding the rule of law in the town. Instead, he and colleagues in the Liberal government of Ontario Premier Dalton McGuinty are bent on trying to assure the peace by appeasing the aboriginal protestors.

To this end, the McGuinty government bought the disputed land from the developer last June. Given that neither the developer nor the government now has any objection to the occupation of the land by aboriginals, Bryant takes the view that there is no longer any need for him to enforce Marshall’s court order to end the aboriginal occupation.

Marshall disagrees. It was in response to a request by counsel for the Attorney General and the Ontario Provincial Police that he found last March that the aboriginal protestors were in criminal contempt of his court. In an additional ruling on August 8, he pointed out that the failure of the Attorney General and the police to uphold this finding of the court in the face of mob violence constituted a grave attack on the rule of law.

In his reasons for judgment, Marshall observed: “The citizens of Caledonia may well ask why – why should I pay a fine which a judge has ordered when the protestors do not have to obey the court’s order? To that person, this court has no teeth. To that person, this is not a court at all.”

While acknowledging that the Attorney General and the police have wide powers of discretion in deciding when and how to enforce the lawful orders of a court, Marshall emphasized: “They must not use their discretion to defeat the court’s orders.” In the context of the Caledonia dispute, he advised the government, (but did not order, as is commonly reported) that “negotiations should cease until the rule of law returns and the barricades come down.”

The McGuinty government has rejected that advice. It is continuing to negotiate with the aboriginals; the barricades remain up in Caledonia; and there is no prospect of any early revival of the rule of law in the town.

Ontario Progressive Conservative Party leader John Tory is justifiably scandalized. In a commentary published last week in The National Post, he wrote: “It is a fundamental rule of society that the law is the same for everybody. No matter how passionate the belief in a cause, nobody has the right to ignore the law just because they disagree with it or find it inconvenient. It does not matter whether you are in Caledonia, downtown Toronto or anywhere else in Canada.”

Tory takes the view that McGuinty should insist on the removal of the barricades that divide Caledonia and agree to negotiate only with those who “hold respect for the rule of law and for each other.” Tory suggested that in this way, the premier would be “encouraging everyone to uphold and promote respect for our laws and the cherished processes we have in place to deal with them.”

Tory is right, in this instance, but he should be more consistent. If he sincerely believes that the rule of law should apply “in downtown Toronto or anywhere else,” he should summon the Attorney General to bring charges against all the men who routinely violate the criminal code, by parading stark naked through the streets of Toronto during the city’s annual gay pride parade.

Marshall underlined in his August 8 ruling that the rule of law is “the pre-eminent condition of freedom and peace in a democratic society.” It follows that the breakdown of the rule of law in Caledonia, as in so many other instances in Canada, should be a matter of utmost concern, not just to judges like Marshal, but to all Canadians.